Article Story: RENTAL AND LENDING AND A WAILING AND GNASHING OF TEETH - PART III

Date: 15/7/1997

BITS AND PIECES

The story so far...

The Regulations came into effect on 1 December 1996 and amend and extend the Copyright, Designs and Patents Act 1988 ('the CDPA'). The Regulations implement, belatedly, the provisions of three European Council directives relating to copyright and performers' rights, including rental and lending rights.

Parts one and two of this article dealt with the introduction of rental and lending rights for copyright owners and performers. This article summarises the other changes in UK law introduced by the regulations. It should be treated as a guide to the various topics covered below and not as detailed advice.

Broadcasts made after 1 December 1996

A broadcast is deemed to be made from the place where, under the control and responsibility of the person making the broadcast, the programme-carrying signals are introduced into an uninterrupted chain of communication (including, in the case of a satellite transmission, the chain leading to the satellite and down towards the earth).

Where a satellite broadcast is made from a place which is not located within an EEA state* and the law of that country fails to provide a minimum level of protection for copyright owners and performers (ie protection equivalent to ss20 and 182(1)(b) of the CDPA and a right of equitable remuneration for the broadcast of sound recordings) the place from which the broadcast is made is now deemed to be:

(a)  if the signal is uplinked from an EEA state, that EEA state and the person operating the uplink station will be treated as the person making the broadcast; or

(b)  if the uplink station is not located in an EEA state but a person who is established in an EEA state has commissioned the making of the broadcast, that person shall be treated as the person making the broadcast and the place in which he has his principal establishment in the EEA state shall be treated as the place from which the broadcast is made.

A special provision has been introduced in relation to the satellite broadcasting of certain films produced under international co-production agreements. In the case of agreements concluded before 1 January 1995 between two or more co-producers of a film, one of whom is a national of an EEA state, under which the parties are granted exclusive rights to exploit the film in separate geographical areas, and such exclusive rights are granted in respect of the United Kingdom without expressly or by implication addressing satellite broadcasting from the United Kingdom, the person to whom those exclusive rights have been granted shall not make any such broadcast without the consent of any other party to the agreement whose language-related exploitation rights would be adversely affected by that broadcast.

Cable retransmissions

A copyright owner can neither grant nor refuse authorisation for the reception and immediate cable retransmission by a cable operator of a broadcast from another EEA state ('the cable retransmission right') otherwise than through a licensing body. Where a copyright owner has not transferred the management of his cable retransmission right to a licensing body, the licensing body which manages rights of the same category shall be deemed to be mandated to manage his right. Where more than one licensing body manages rights of that category, the copyright owner may choose which of them is deemed to be mandated to manage his rights, but the Regulations are silent as to how one determines which of two or more licensing bodies managing the same category of rights should be deemed to represent a copyright owner who has not transferred the management of his rights to any licensing body. A 'mandated' owner is to be treated on the same basis as copyright owners who have transferred their rights to the licensing body freely.

There is a three year limitation period, starting from the date of the relevant cable retransmission. These provisions do not affect any rights exercisable by the maker of the broadcast.

Publication right

A person who, after the expiry of copyright protection, publishes for the first time a previously unpublished literary, dramatic, musical or artistic work or film acquires a 'publication right' equivalent to copyright.

For this purpose, 'publication' includes any communication to the public - in particular, the issue of copies to the public, making the work available by means of an electronic retrieval system, the rental or lending of copies of the work to the public, the performance, exhibition or showing of the work in public or broadcasting the work or including it in a cable programme service.

No account shall be taken for this purpose of any unauthorised act. When there is no copyright in the work, this means an act done without the consent of the owner of the physical medium in which the work is embodied or on which it is recorded.

A work qualifies for publication right protection only if the first publication is in the EEA and the publisher is at the time of first publication a national of an EEA state (where two or more persons jointly publish the work, it is sufficient if any one of them is a national of an EEA state).

The publication right expires at the end of the period of 25 years from the end of the calendar year in which the work was first published.

No publication right arises from the publication of a work in which Crown or Parliamentary copyright subsisted.

Authorship of films

The producer and the principal director of a film are now the authors of the film. This applies to films made on or after 1st July 1994. A film is to be treated as a work of joint authorship unless the producer and the principal director are the same person. However, it is not an infringement of any right which the principal director has by virtue of the Regulations to do anything after 1 December 1996 in pursuance of arrangements for the exploitation of the films which were made before 19 November 1992.

Where a film is made by an employee in the course of his employment, his employer is the first owner of the copyright in the film, subject to any agreement to the contrary. This rule already applies to most works, but does not apply to sound recordings.

Photographs

Any question as to who is to be regarded as the author of pre-1989 photographs for the purposes of revived copyright is to be determined in accordance with the rules set out in s9 of the CDPA and not in accordance with the rules in force at the date when the work was made. S9 defines 'author' in relation to copyright works and should be read with S11 of the CDPA which deals with the first ownership of copyright.

Transitional provisions and savings

The regulations came into effect on 1 December 1996. An existing work is one made before that date. Where the making of a work extends over a period, it is taken to have been made when it was completed.

Subject to the special transitional provisions and savings set out in the Regulations, the Regulations apply to copyright works made before or after 1 December 1996 , but no act done before 1 December 1996 shall be regarded as an infringement of any new right conferred by the Regulations (ie a right arising by virtue of the Regulations in relation to a copyright work to authorise or prohibit an act, but excluding any right to remuneration arising under the Regulations) or as giving rise to any right to remuneration arising by virtue of the Regulations.

Except as otherwise provided in the Regulations, the Regulations do not affect any agreement made before 19 November 1992, nor will any act done under such an agreement be regarded as an infringement of any new right.

* NB:  The EEA states are currently Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom.

Antony Gostyn

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