UK public consultations on changes to CDPA 1988 and the Duration of Copyright and Rights in Performances Regulations 1995

This technical consultation covers the proposed changes to Schedule 1 CDPA to ensure equal treatment of copyright works made prior to 1 June 1957; and the amendment and repeal of some of the 1995 Regulations to ensure compliance with Article 2 of Directive 2001/29/EC 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (InfoSoc Directive).

The scope of this consultation is limited to technical considerations around the amendment of Schedule 1 CDPA and regulation 16 of the 1995 Regulations, and the repeal of regulations 24, 34, 25 and 35.

This consultation is aimed at: creators of works of artistic craftsmanship, such as designers; rights holders in those works, such as licensees; manufacturers, importers and retailers of replicas of those works; publishers; museums, archives and educational establishments; creators of photographs and films; performers in copyright works; rights holders in these works, such as licensees; and those who have used, or intend to use, compulsory licenses under the 1995 Regulations.

The repeal of regulations 24, 25, 34 and 35 concerns any works that are, or could be, the subject of a compulsory licence. In the Government’s view, the provisions are at odds with Article 2 of the InfoSoc Directive in deeming that certain acts in respect of a copyright-protected work are to be “treated as licensed”. Article 2 provides that the right of reproduction is an exclusive one. This means that authors and rights holders have the exclusive right to reproduce their works, and performers have the exclusive right to control the reproduction of fixations of their performances. That being so, in the Government’s view the regime in regulations 24 and 34, which precludes rights holders from controlling the use of their works in certain circumstances, is not in compliance with Article 2. The Government has therefore decided to repeal these regulations, to ensure that UK law complies with EU law.

The First Term Directive and the Second Term Directive provide that the rights of the author of an artistic work shall run for the life of the author plus 70 years after their death. This applies to all works which were protected by copyright in at least one member state on 1 July 1995. Therefore, if a design was protected by copyright in at least one member state before that date, the UK must recognise the copyright in that work even if the copyright had expired in the UK, or had never subsisted.

Paragraph 6 of Schedule 1 of the CDPA currently prevents artistic works having copyright protection if they were made prior to 1957; were capable of being registered as designs, and were used or intended to be used as a pattern or model to be reproduced more than 50 times. Amendment of this paragraph is needed to ensure works defined by this paragraph have the same level of copyright protection as other works.

The government proposes to introduce sub paragraph 6(1A) that would exclude from paragraph 6(1) works that were protected by copyright in another EEA state in 1995. Amendment of this paragraph is considered necessary to be more explicit about the copyright protection of works which were protected in another EEA state on 1 July 1995. The intention of this amendment is to afford copyright protection to pre-1957 works. It is not the Government’s intention to confer copyright protection on items that previously never had copyright protection anywhere, as the items would still need to qualify for copyright protection within the terms set out in the CDPA.

Regulation 16 of the 1995 Regulations sets out the application of the provisions relating to duration of copyright in works. The regulation requires amendment to make it clear that the full duration of copyright protection also applies to pre1957 artistic works that are entitled to such protection because they were protected by copyright in at least one EEA state on 1 July 1995. To do this, the Government proposes adding a paragraph to Regulation 16 to include works that fall under proposed paragraph 6(1)(A) of the CDPA.

The effect of this change should ensure that an artistic work that is also capable of being a design is entitled to copyright protection, even if the work was made before 1 June 1957, as a result of the amendments to Schedule 1 CDPA. It is not the Government’s intention to confer copyright protection to works which are not entitled to such protection under UK law. That is the reason for framing the new subparagraph by reference to Schedule 1 to the 1988 Act rather than directly by reference to whether the work qualified for copyright protection in another EEA state on 1 July 1995.

In the UK, under the Duration of Copyright Terms Regulations, the length of term of copyright protection was extended from 50 to 70 years after the death of the author. Within those regulations, Regulation 24 stipulates that any works whose copyright was “revived” as a result of this increase in term are to be “treated as licensed by the copyright owner” if the person wishing to use them gives reasonable notice, subject to payment of a reasonable royalty. Similar provisions are laid out in Regulation 34 regarding performances.

In the Government’s view, the provisions under which works can be deemed to be licensed without the rights holder’s consent are at odds with Article 2 of the InfoSoc Directive. Article 2 provides that the right of reproduction is an exclusive one. Authors and copyright holders have the exclusive right to reproduce their works, and performers have the exclusive right to control the reproduction of fixations of their performances. A statutory regime under which those rights holders are prevented from objecting to any use of their works, regardless of the circumstances, is incompatible with Article 2. The Government has therefore decided to repeal these regulations, to ensure that UK law complies with EU law.

Regulations 25 and 35 relate to applications to the Copyright Tribunal to settle the royalty or other remuneration payable in pursuance of Regulations 24 and 34 respectively. As Regulations 24 and 34 are to be repealed, these regulations will also be repealed.