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UK IPO guidance on changes to Section 72 of the CDPA 1988 concerning of free public showing or playing of broadcast

Copyright protects literary, dramatic, musical and artistic works as well as films, sound recordings and broadcasts. If you want to copy or otherwise use a copyright work then you usually have to get permission from the copyright owner.

Copyright law seeks to strike a balance between the interests of copyright owners and users of copyright material in a way which promotes creativity and innovation, economic growth, and wider benefits to society. To help achieve this balance, the law provides a number of exceptions which set out activities which do not infringe copyright and therefore do not need the permission of the rightsholder.

One such exception is provided by Section 72 of the Copyright, Designs and Patents Act 1988 (CDPA), which allows for the public showing or playing of a broadcast by organisations that do not charge an entry fee. The law on this exception has changed, which affects the way organisations can broadcast films in public.

This guidance is aimed at all organisations (including charities, voluntary and not-forprofit organisations) which show television broadcasts in public. It will be of particular interest to pubs and other premises which choose to show live sporting events.

Section 72(1) permits premises allowing free public access to show television broadcasts without the permission of certain copyright owners. Previously, Section 72(1) applied to film, broadcast and certain sound recording copyrights. Following amendment, film has been removed from the scope of this exception.

Section 72(1B) provides an exception to copyright infringement for the playing or showing of a broadcast, and any films and sound recordings included in it, where the use is necessary for the demonstration or repair of radios, televisions and similar equipment for receiving broadcasts. This exception has been retained.

Following legal action brought by the Football Association Premier League against pubs using unauthorised satellite decoder cards to show live Premier League football matches, the scope of the Section 72 provision was questioned. The court found that there was inconsistency between the CDPA in relation to the inclusion of ‘in any film included in a broadcast’ and what is set out in EU legislation.

The previous wording and interpretation of Section 72 had led some commercial premises to attempt to rely on the exception to show exclusive subscription television broadcasts without paying for the required commercial licences, often attempting to remove the creative aspects of sports broadcasts (e.g. by switching off the sound, placing cards over logos, or using masking technology which obscures logos), and relying on Section 72 in respect of film fixations. This made it difficult, though not impossible, for copyright owners to take legal action to enforce the use of commercial subscriptions, distorting the market between pubs which pay for commercial subscriptions, and those that use comparatively cheaper unauthorised systems.

The removal of ‘film’ from Section 72 means that those wishing to show broadcasts in public may need to gain the permission of film rightsholders to show the film contained within a broadcast, as is currently the case for certain other rights. Separate licences may still be required from PRS and PPL in relation to music contained in a broadcast, as well as any other underlying rightsholder who chooses to enforce/license their copyright.

Section 72 continues to apply to the broadcast itself – as opposed to the works contained within the broadcast – which means that as long as copyright permissions have been obtained from the relevant copyright owners, no additional permission to show the broadcast is required from the broadcaster.