Copyright, Designs and Patents Act 1988

Part I of the Act (copyright provisions) extends to the whole of the United Kingdom (s. 157); amendments by Order in Council extended the Act 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).

Part II of the Act creates a series of performers' rights in application of the 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 directives 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).

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:

• 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,[6] 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.

Artistic works that are mass-produced by an industrial process suffer from a downgrading of their copyright term from the life of the creator plus 70 to 25 years as a result of the provisions of section 52 of the Copyright, Designs and Patents Act 1988. The Enterprise and Regulatory Reform Act 2013[7] was introduced into Parliament on 23 May 2012 and received royal assent the next year in April. If section 56(2) of the Bill is enacted then artistic works that are mass-produced by the copyright holder will benefit from the same period of protection as those not replicated in large numbers. The result will be a significant extension from 25 years to that of the life of the creator plus 70 years. The proposed change is a reaction to pressure from the international furniture industry supported by manufacturers of decorative arts: copyright holders of many famous and much copied 20th century furniture design classics such as the Egg Chair and Barcelona Daybed hope that long expired copyright periods will be revived allowing for a further period of commercial exploitation.[8] Some legal commentators have doubted whether the legislation will have the desired effect. They contend that many mass-produced items of 20th-century industrial furniture may not be defined by the courts of the United Kingdom as works of artistic craftsmanship but as mere designs. A design that is not an artistic work attracts no copyright protection under the 1988 Act.[9]

Illustration of Peter Pan playing the pipes, by F. D. Bedford from Peter and Wendy (1911)

Section 301 and Schedule 6 contain an unusual grant of the right to royalties in perpetuity, proposed by Jim Callaghan, 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 given his copyright to the hospital in 1929, later confirmed in his will. Although often incorrectly referred to as a perpetual copyright, it does not confer Great Ormond Street Hospital full intellectual property rights over the work. 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.

The following are also permitted acts (the list is not exhaustive):

• Fair dealing with a work for the purposes of private study or research (s. 29);
• Fair dealing with a work with acknowledgement for the purposes of quotation, criticism or review or, unless the work is a photograph, for the purposes of news reporting (s. 30);
• Fair dealing with a work for the purposes of caricature, parody or pastiche (s. 30A);[10]
• Incidental inclusion of copyright material in another work (s. 31);
• Public reading or recital by a single person with acknowledgement (s. 59);
• Copying and distribution of copies of the abstracts of scientific and technical articles (s. 60);
• Recordings of folk songs for archives (s. 61);
• Photographs, graphic works, films or broadcasts of buildings and sculptures in a public place (s. 62) (see Freedom of panorama);
• 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); (S. 67 was omitted (1.1.2011) by virtue of The Copyright, Designs and Patents Act 1988 (Amendment) Regulations 2010). The impact is that charities and not-for-profit organisations that do not fall within the voluntary exemptions offered by PPL now require a licence from the joint licensing system operated by PPL and PRS for Music;[11]
• 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).

In general, limited copying for educational use (including examination) is permitted so long as it is 'fair dealing' and 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 of published editions is only permitted within the limit of 5% of the work per year (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 there are different things too.(e.g., by being teachers or governors). Further provisions are contained in secondary legislation.

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.

Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings or for the purposes of a Royal Commission 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 Organization under the Patent Cooperation Treaty, and material held as public records under the Public Records Act 1958 c. 51 or similar legislation (s. 49).

• Test of joint ownership - Problems can occur when there is a need to determine whether a person involved in the creation of a piece of work may have joint ownership. When this is the case, there is a test that can be applied, similar to the one which is used to determine originality. This test is used in order to show that the labour, skill and judgement exercised by the author are unique and are that of which are protected by copyright.
  • Levy v Rutley [1871] - In this case it was stated that there can be no finding of joint authorship in a copyright work in the absence of a common intention to that effect. It is implicit in the concept of 'collaboration' that there must be "joint labouring in the furtherance of a common design". This means that it is necessary for both authors to make a significant contribution and that they must have had a similar plan. The levy judgement was subsequently approved by the case of Beckingham v Hodgens 2003.[12]
  • Stuart v Barret [1994] - The court described the test for joint authorship in a work of music: "What the claimant to joint authorship of a work must establish is that he has made a significant and original contribution to the creation of the work and that he has done so pursuant to a common design." It is not necessary that his contribution to the work is equal in terms of either quantity, quality, or originality to that of his collaborators. Nor, in the case of a song, does it matter that his contribution is to the orchestral arrangement of the song rather than to the song itself."
  • Godfrey v Lees [1995] - The claimant was a classically trained pianist invited by a pop group to reside with them and act as orchestral arranger of a number of their songs. He never became a member of the group. The issue here was whether the claimant was the joint owner of copyright in six musical works for which he had made orchestral arrangements or contributed to their composition. It was held that the claimant had established that he had made a significant and original contribution to the creation of the work and must be regarded as a joint author. But as he had waited 14 years before asserting his rights, he was stopped from revoking the implied license granted to the pop group for the exploitation of the works.
  • Cala Homes Ltd v Alfred Mcalpine Homes East Ltd [1995] - The case concerned the relevance of the joint authorship test in employment relationships. Mr Justice Laddie delivers the judgement in which he says '"to have regard merely to who pushed the pen is too narrow a view of authorship."[13] Therefore, it is wrong to think that the only person who carries out the mechanical act of fixation is the author.
  • Julia Kogan v Nicholas Martin and others [2019] - This is the leading case which sets out the test of joint authorship. The case reviewed s. 10(1) which defines a "work of joint authorship." Section 10(1) states that a work of joint authorship is a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author/author's. From this the court outlined four elements of joint authorship: collaboration, authorship, contribution, and non-distinctiveness of contribution.[14]
• Test of originality
  • University of London Press v University Tutorial Press [1916] - This case explains the concept of originality. Here, examiners were hired to create exam scripts for the University of London. The question arose as to whether certain mathematics exam papers were original literary works. The exam papers just consisted of conventional maths problems in a conventional manner. The court held that originality does not mean that the work must be an expression of individual thought. The simple fact that the authors drew on a body of knowledge common to mathematicians did not compromise originality. The requirement of originality, it was held, does not require that expression be in an original or novel form. It does, however, require that the work not be copied from another work. It must originate from the author. As such, even though these were the same old maths problems every student is familiar with, and even though there was no creative input, the skill, labor, and judgement of the authors was sufficient to make the papers original literary works. Essentially, the criteria are satisfied if the work is not a copy of a preceding work and it is originated from the author, who must have exercised the requisite labor, skill or judgement in producing the work.
  • Interlego AG v Tyco Industries Inc [1989] "the Lego brick case" - This case established that not every minor alteration on an object amounts to a new copyright existence. There has to be some additional element of material alteration sufficient to make the work original.[15] In other words, to say that a new copyright protection existed in what was essentially the same work would result in protection being extended indefinitely through a continuation of minor changes.
  • Infopaq International A/S v Danske Dagblades Forening [2009] - This case determined that extracting 11 words of text from an alternative source amounted to unlawful copying. The Court of Justice of the European Union decided that copying a short sentence/phrase form a literal work might be regarded as substantial copying if those words were the result of the intellectual creation of the author.[16] The case received subsequent approval from The NLA and others v Meltwater Holding BV and others [2011].[17]
  • Football Dataco Ltd v Yahoo! UK Ltd and others [2012] - This case established that football fixture lists are not protected by copyright if the compilation is not the authors own intellectual creation even if the compilation required significant labor, judgement and skill [at 42].[18] The Dataco case emphasizes the need for creative choices and decisions to be made in addition to the labor and skill that is required to produce the work in question.
• The Primary Infringement Test for Economic rights
  • Designers Guild v Russell Williams [2000] - Designers Guild determined that copyright infringement occurs when a defendant has taken a substantial part of an original work.[19] The courts in making a determination of substantial pay regard to its quality, not whether the two works look alike or the same. An important distinction which means reference must be made to a work's quality rather than quantity.
• Performing rights
  • Gramophone Company v Stephen Cawardine [1934] - The coffee shop, Stephen Carwardine & Co, had been keeping its customers entertained by playing records. EMI, then called The Gramophone Company and argued that it was against the law to play the record in public without first receiving the permission of the copyright owners. The judge agreed, establishing this as a legal principle. EMI and Decca formed Phonographic Performance Ltd (PPL) to carry out this licensing role and opened the first office in London. The Copyright Act 1956 led to the expansion of PPL's role to also cover the licensing of broadcasters that played recorded music. Further copyright law changes in 1988 strengthened PPL's licensing position. In 1996, performers were given the rights to receive 'equitable remuneration' where recordings of their performances were played in public or broadcast – leading to PPL paying them royalties directly for the first time. In addition, it was stated by Maugham J that, "the arrangement of the recording instruments in the building where the record is to be made, the building itself, the timing to fit the record, the production of the artistic effects, and, perhaps above all, the persons who play the instruments, not forgetting the conductor, combine together to make an artistic record, which is very far from the mere production of a piece of music".
• Test of first ownership of copyright in sound recordings
  • A&M Records v Video Collection International [1995] - Torvill and Dean wanted to create music to dance to. Their service company, Inside Edge ("IE"), was given the task of doing this. IE engaged a Mr. Pullen who in turn engaged an arranger and a conductor (R). It was common ground that R did the following – commissioned and paid for the musical arrangements, booked and paid for the studio, arranged and paid for the attendance of the 51 musicians necessary to make the recording, engaged and paid for the scoring, a sound engineer, and a fixer and paid for all expenses of the sessions such as meals, taxis, etc. The issue in this case: who was the "author" of the sound recording under s. 9(2) CDPA? By whom were the arrangements necessary for the making of the recording undertaken? Alternatively, was IE the owner in equity under the principles of Massine v De Basil? And if the plaintiffs were not the owners of the copyright, was R stopped from asserting his ownership? In the case, it was held that IE undertook the arrangements through Mr. Pullen. R made the recordings, but Mr. Pullen undertook the arrangements. It was also an implied term in the contract between R and Mr. Pullen that IE would own the copyright. However, had IE not been the copyright owner, R would not have been stopped because he was not aware of his rights.
• Moral Rights
  • Turner Entertainment co. v Huston, CA [1992] - This case concerned the colorization of a black and white American film directed by John Huston. After John's death the film was colorized by Turner Entertainment. The heirs of Huston and others sought to prevent the broadcast of the colorized version on French national TV, and were successful. The colorization of the film breached the heirs moral right of integrity under French law. The case would also be actionable under UK law via s. 77–83.

The Copyright and Related Rights Regulations 2003 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.[20]

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).

Liability for secondary infringement is dependent on the defendant knowing or having reason to believe, that the activities in question are wrongful. This question of requisite knowledge is determined objectivity.[21]

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[22]
• Importing infringing copies (except for personal use)[23]
• Offering for sale or hire, publicly displaying or otherwise distributing infringing copies in the course of a business[24]
• Distributing a large enough number of copies to have a noticeable effect on the business of the copyright owner[25]
• Making or possessing equipment for the purposes of making infringing copies in the course of a business[26]
• Publicly performing a work in knowledge that the performance is unauthorised[27]
• 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)[28]
• 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.[29]

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 indictment (in the Crown Court) some offences may attract an unlimited fine and up to 10 years imprisonment.[30]

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).

Part IV of the Act contains a certain number of amendments to the Registered Designs Act 1949 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 Designs Act 1949 is included (s. 273, Schedule 4).

The following regulations were made under the European Communities Act 1972 in order to implement European Union directives in UK law.

Also:

• Copyright (EC Measures Relating to Pirated Goods and Abolition of Restrictions on the Import of Goods) Regulations 1995 No. 1445
• Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 No. 2356[33]

• National Health Service and Community Care Act 1990 c. 19
• Courts and Legal Services Act 1990 c. 41
• Broadcasting Act 1990 c. 42
• Judicial Pensions and Retirement Act 1993 c. 8
• Charities Act 1993 c. 10
• Trade Marks Act 1994 c. 26
• Criminal Justice and Public Order Act 1994 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 Deposit Libraries Act 2003 c. 28
• Re-use of Public Sector Information Regulations 2005 No. 1515
• Performances (Moral Rights, etc.) Regulations 2006 No. 18